By Carter Anne McGowan
On Monday, January 6th, attorneys in the consolidated NFL Concussion Litigation (In Re: National Football League Players' Concussion Injury Litigation, No. 2:12-cv-03224-AB (E.D. Pa. Mar. 6, 2012)) (Concussion Litigation) submitted a motion to the court requesting approval of the terms of the settlement agreement (the Settlement Agreement) reached by the player-plaintiffs in the class action suit and the NFL. This Settlement Agreement, revealed in detail for the first time as an Exhibit appended to the motion, immediately resulted in controversy among the players.
The Settlement Agreement proposes a fairly complicated methodology of compensating former players suffering from some form of neurocognitive impairment greater than Level 1 Neurocognitive Impairment (i.e. the neurocognitive impairment must amount to at least early dementia in order to be compensable under the Settlement Agreement). Amyotrophic Lateral Sclerosis (ALS, or Lou Gehrig's Disease), Chronic Traumatic Encephalopathy (diagnosed post-mortem), Parkinson's Disease, Alzheimer's Disease, and Levels 1.5 and 2 Neurocognitive Impairment (early or moderate dementia) are compensable under the Settlement Agreement, with ALS eligible for compensation at a maximum amount of $5 million dollars, and the maximum compensation for Level 1.5 Neurocognitive Impairment being $1.5 million dollars. If players played in the NFL for fewer than five years or were over 45 years of age at diagnosis, they are not eligible for maximum compensation, and the Settlement Agreement sets forth in chart form the reductions in compensation for impairments diagnosed in former players over 45 years and in players who played fewer than five "Eligible Seasons" (seasons in which the player was on the active list or out with a head injury for a combination of three regular season or post-season games or on the practice squad for eight games, which earns a player half an eligible season).
While this structure does provide predictability with regard to the amount of compensation players and their families can expect, the Settlement Agreement faced immediate criticism, as the amounts to be received by most players will be far lower than the $5 million per player bandied about in early press regarding the settlement. In addition, legal fees will further reduce those amounts received by players who sued the NFLe, while those players who did not sue, but who remain beneficiaries of this Settlement Agreement, do not bear legal fees; already one attorney has indicated that he will file an objection to this perceived inequity. (Ken Belson, With NFL Concussion Deal, Two Tiers of Payouts, N.Y. TIMES, January 11, 2014. http://www.nytimes.com/2014/01/12/sports/football/with-nfl-concussion-deal-two-tiers-of-payouts.html?_r=0. The NFL has in addition agreed to pay $112.5 million in legal fees; however, these fees are intended to pay the lead attorneys on the case, and not all the attorneys, many of whom were working on contingency, and represented individual players before they joined the class action.) This alone could create a conflict of interest between the players who sued (numbering 4,500) and the number of beneficiaries of the Settlement Agreement (numbering 18,000) which could result in the settlement being struck down on appeal. (Id., quoting Prof. Lester Brickman of Cardozo Law School.)
Once Judge Anita B. Brody approves the Settlement Agreement, the player-plaintiffs will have 60 days to opt in or opt out of the settlement. With some players unhappy about the lower-than-expected payouts or the lack of NFL admission of responsibility for the players' neurocognitive impairments, it is possible that there will be a large number of opt-outs. At some point, then, this settlement may become irrational for the NFL, as the NFL would be left in the position of having settled one case for a large sum of money while still having to defend numerous lawsuits from former players. Under Paragraph 16.1 of the Settlement Agreement, the NFL does have the "absolute and unconditional right... to unilaterally terminate and render null and void this Class Action Settlement and Settlement Agreement for any reason whatsoever following notice of Opt Outs and prior to the Fairness Hearing."(Concussion Litigation, Document 5634-2.)
While it is still much too early to determine whether this settlement will fail, the warning signs are there, and this case - initially thought to be settled quickly and elegantly by the NFL and the plaintiffs - may still have some rough going in the months ahead.